Ok, Ok, I know. I've advocated for blood draws under a higher standard under certain conditions and stopping there. But who would have thought that shortly thereafter, I would be rear-ended by an apparent intoxicated driver on Route 79 in Round Rock coming home from my office today.
I was driving westbound on 79. As I slowed for the light on Sunrise, I glanced in my rear-view mirror to see a van going a bit too fast to stop. As I eased up on the brake to absorb the impact, the van struck me. I departed from my vehicle to see a somewhat disoriented person behind the wheel. Motioning to a nearby parking lot, he followed me into the lot and proceeded to ramble some incoherent blather. Interestingly, a women in a white van followed us in, motioned me over and proceeded to inform me she was on the phone with the police about his erratic driving prior to the accident.
After I exchanged insurance info with him (with the help of the police), I left. As I was leaving, the police were beginning the SFST's. I didn't stick around. The policeman called me later and informed me that the driver was arrested for DWI 2nd. I was told he admitted to 3 beers and an undisclosed amount of Xanax.
So, is this an appropriate scenario for a blood draw? Under the current APD policy, it is if there is a total refusal. Is that appropriate--collision, prior DWI, and total refusal (I don't know if he refused on this, but let's say he did)? I feel the public's pain (literally). I can see no powerful legal argument to counter the public opinion to get tougher on drivers like these, even if we suggest a higher standard for warrants.
If we as lawyers are going to try to limit the use of blood draws, we had better find an argument that is going to jolt the public to action at least as hard as I was jolted out of my seat today. To this end it will be no small task.
Am I still advocating the policy in my previous post? Hey, I'll get back to you on that.